You Won! Now What? Three Tips When Applying for Prevailing Party Fees

Allen_Kevin_webCongratulations, you’ve won your case! Your client is ecstatic and, assuming there is no appeal, the only thing left to do is to make an application for prevailing party fees (and to enforce your judgment, but that is another article altogether).

Over 90 percent of cases settle before trial, so you haven’t had to make a fee application in years. This article provides you with three quick tips when making a fee application.

Tip #1: Show the court clearly that your dispute falls within an exception to the “American Rule” for attorney’s fees.

The general rule in the United States, the so-called “American Rule,” is that each side pays its own attorney’s fees regardless of who wins the underlying dispute. The rule does not apply where a contract provision[1] or statute specifically provides for prevailing party fees.

There are many fee shifting statutes available, particularly in employment cases, but they differ in a few important respects. Some are mandatory and require an award of fees,[2] whereas others are discretionary and allow a tribunal to reduce or even deny an award under certain circumstances.[3]

Some fee shifting statutes are one way, meaning that they only allow for a prevailing employee to collect fees, whereas others apply to either party.[4] Some are tied into prevailing on a specific type of claim, whereas others are available to any plaintiff who created a significant benefit for the public.[5]

For these reasons, your application should cite each basis for why the court should award your fees and indicate whether the award is mandatory or discretionary.

Tip #2: Show that your client is the “prevailing party.”

In order to collect prevailing party fees, you must first establish that you are the “prevailing party.” In some cases it is simple. Where there is a mandatory fee shifting pursuant to statute, it is usually fairly easy to show that a party is (or is not) the prevailing party as to the claim covered by the statute.

It is not always so simple when dealing with a contractual provision where there can only be one prevailing party.[6] For example, if a party only prevailed on one of his or her four claims, you can almost guarantee the opposing party will argue it prevailed on the action as a whole since it successfully defended against the other three.

Under such circumstances, it will be particularly important how you frame the case. If you only prevailed on one cause of action, perhaps the others can be viewed as ancillary or derivative claims. Maybe the winning claim had a higher dollar value or took up more time or more law and motion work or discovery than the other claims.

However you do it, you need to convince the court that you won the case. In a close call, the tribunal might decide that neither party should be deemed the prevailing party[7] or, even worse, that your opponent prevailed because he or she won more claims.

Tip #3: Provide sufficient evidence to support the reasonableness of both your requested hourly rate and hours worked.

Once you are deemed the prevailing party, the question remains how much you should be awarded. The U.S. Supreme Court has described the “lodestar” method as the “guiding light” of “fee-shifting jurisprudence,” and has “established a ‘strong presumption’ that the lodestar represents the ‘reasonable’ fee.”[8]

The lodestar figure is calculated by multiplying the reasonable rate for comparable legal services in the local community for litigation of the same type by the number of hours spent on the case.[9]

There are several ways to support the reasonableness of your hourly rate. You should always provide a declaration to support your requested hourly rate.[10] The declaration can attest that clients typically pay this amount per hour or that tribunals have approved the requested rate in other cases. Sometimes this is not possible. Many plaintiffs’ attorneys rarely if ever perform hourly work.

Also, the hourly rate that is charged to a client may be less than the reasonable “market” rate for the attorney’s services.[11] For this reason, you should buttress your fee application with support from third parties.

The most effective way to do so is to provide declarations from other attorneys, ideally from the same region and practice area as you. The declaration should describe the attorney’s hourly rate and opine on the reasonableness of your proposed rate. A declaration from a reliable attorney’s fee expert can also be particularly strong evidence.

In a pinch, you may also want to cite to the “Laffey Matrix,” a fairly well-established source that federal and state courts sometimes use to determine reasonable rates by experience for particular communities.[12]

The matrix is not perfect, as it reflects rates for the District of Columbia that must then be adjusted for your locality through the use of federal locality pay differentials.[13] (Some courts do not place much reliance the matrix, so it should be used in addition to the other sources.)

Lastly, you need to support the reasonableness of your hours. This can be complicated where the complaint contains some causes of action that allow for fee shifting and some that do not, or where you only won some of the claims.

In such cases, you may still be able to seek an award for all of your time but only if the claims are intertwined or overlapping in nature.[14] Be careful not to overreach when making such an argument, and if you think there is a chance the court will disagree, it is probably advisable to describe the hours spent on potentially non-fee award claims. Otherwise, the tribunal may do it for you or even deny your application for lack of evidence.

Kevin R. Allen, Esq., is the principal of the Allen Attorney Group in Walnut Creek. He represents employees and small business clients in trial and arbitration with a strong emphasis on wage and hour and class action issues.

[1] See Civil Code section 1717(a). (“In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded … to the prevailing party, then the party who is determined to be the party prevailing on the contract … shall be entitled to reasonable attorney’s fees in addition to other costs. Reasonable attorney’s fees shall be fixed by the court, and shall be an element of the costs of suit.”)

[2] Labor Code section 1194(a). (“Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action … reasonable attorney’s fees, and costs of suit.”)

[3] In discrimination cases brought under FEHA, the “prevailing plaintiff ‘should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.’” Stephens v. Coldwell Banker Commercial Group, Inc. (1988) 199 Cal.App.3d 1394, 1405, citing Newman v. Piggle Park Enterprises (1968) 390 U.S. 400, 402.

[4] See e.g., Labor Code section 218.5.

[5] See e.g., Code of Civil Procedure section 1021.5.

[6] See e.g. Frog Creek Partners, LLC v. Vance Brown, Inc. (2012) 206 Cal. App. 4th 515, 539 (“[U]nder Civil Code section 1717, there may only be one prevailing party entitled to attorney fees on a given contract in a given lawsuit.”).

[7] See Civil Code section 1717(b)(1). (“The court may also determine that there is no party prevailing on the contract for purposes of this section.”)

[8] See City of Burlington v. Dague et al. (1992) 505 US 557, 562.

[9] See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131–1132; Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1242–1243.

[10] Prevailing market rates may be demonstrated by declarations from the moving party’s own counsel. Davis v. City of San Diego (2003) 106 Cal.App.4th 893, 903.

[11] Margolin v. Regional Planning Comm’n of Los Angeles Cnty. (1982) 134 Cal.App.3d 999, 1004 (“market value” is proper analysis to set reasonable hourly rate, not “cost plus” basis, because otherwise “cost plus” would “reward the [losing party] based on the fortuity of the identity of [the prevailing party’s] counsel”).

[12] See In Re HPL Technologies, Inc. Securities Litigation (N.D. Cal. 2005) 366 F.Supp.2d 912, 921.

[13] See

[14] See Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129-130 (“Attorney’s fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed.”

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